This Opinion on Copyrights is Mine

by Colin Berkshire

Copyrights affect every business. From sharing a link or article to using a photograph or even quoting somebody, everybody needs to know about copyrights.

For about 15 years I had executive-level responsibility for Intellectual Property (IP) for our company. I have worked with hundreds of IP lawyers. I’m not a lawyer, but I have a good layman’s idea of how things work.

One of the things which I always thought was wrong was that copyrights were so heavily protected. Originally designed to give protection for a very limited number of years for limited works, this hydra has grown into protecting everything from murals on the sides of buildings to offering virtually infinitely long protection.

If you steal a 99-cent candy bar, or even a box of them, you wouldn’t get much action from the local police or the retailer. The store would probably tell you to put them back and not come back.

But if you steal a 99-cent song and the publisher can prove that you willfully stole it, they are entitled to statutory damages of $150,000 (See 17 USC 504 (c2)) This means that each and every song you steal you must pay $150,000.

Imagine if the penalty for stealing a 99-cent candy bar was $150,000. It would dramatically change the landscape of theft.

But the deck is stacked even more than this. In many cases the United States Government will step in and provide the litigation against the song thief. And, the burden of proof is stacked against the song thief. And, where the law is vague it is in the favor of the music publisher.

So this is why everybody in every industry needs to understand IP law. It deeply affects your business…much more than you may realize.

Do you hook up music on hold on a customer’s phone system? Do you load in some popular songs on the agent queue Moh? If you do, imagine a $150,000 fine every time the song is played!

All works are inherently copyrighted. When you speak, your words are copyrighted. Every email you write is copyrighted. Every creative work is copyrighted.

This gets crazy pretty fast. So, the law has a number of exemptions. The exemptions allow certain uses of copyrighted works without permission, infringement, or royalties. These are called “Fair Use Exemptions”.

The over simplified summary is that it is “Fair Use” if you are editorializing, reporting current news, or are not impacting the revenue of the copyright holder.

So, the Simpsons TV show can pretty much use anything that is copyrighted as long as it is in some way the subject of satire or editorial. A famous copyrighted photo in the background is allowed as long as there is an editorial value to its use. In contrast, a sit-com that just wants to set the ambiance of a room must pay a royalty to use the artwork.

Aside from the statutory exceptions, another way around copyright is through a license. This is how facebook and other websites allow themselves to use your otherwise copyrighted works (like your postings.)

There is one other odd exception: Works must be done by a person. There is a very famous case where a monkey took a photo of himself (supposedly) and it was ruled uncopyrightable because the photo was not taken by a human. (Link) It’s quite possible that surveillance video and other robotic filming would not be copyrightable.

Now, about telecommunications. Telephone directories (the White Pages) were held to be non-copyrightable because they did not contain a minimum modicum of creativity (link), but the Yellow Pages, which have artwork and an arbitrary layout were held to be copyrightable in the US — but not in Australia (Link)